The Notion of “Tested” Contract Language Has Friends in High Places

The most prevalent defense of traditional contract language is that it has been “tested” by the courts. Heck, I even encountered an ardent proponent of the notion on my recent trip to Saudi Arabia.

So I wasn’t surprised to encounter this comment on LinkedIn that endorses the notion. But I was intrigued that the comment was by the general counsel of LexisNexis (based in New York), Ian McDougall. Here’s what he said:

What you have to remember is that many legal documents are not drafted the way they are because the drafters are pleased with the elegance of the language! Most contracts are drafted because of experience of how sentences are interpreted as a matter of law (especially court decisions). It is no good coming up with great, simplistic language if, when the matter gets to a court room there is a dispute over what it means and therefore uncertainty over whether it can be enforced!

Much contract language is the result of court decisions and turning those court decisions into language that is beyond dispute.

If Ian oversees LexisNexis’s contracts, his endorsing the notion of “tested” contract language is enough to suggest that their contracts exhibit the dysfunction of traditional contract language.

Here’s my response to Ian’s comment:

The notion that traditional contract language has been litigated, or “tested,” and so has an established meaning has been thoroughly debunked. See page xxxvii of the fourth edition of my book “A Manual of Style for Contract Drafting”. See also my blog post at https://www.adamsdrafting.com/a-proponent-of-tested-contract-language/.

No one invokes the notion of “tested” contract language after conducting, or consulting, extensive research into contract usages. Instead, it’s a lazy platitude, a fig leaf for the dysfunction that is traditional contract drafting.

For an admittedly extreme example of what happens to “tested” usages under scrutiny, see my recent article on “endeavours” provisions under English law, at https://www.thelawyer.com/putting-end-endeavours-nonsense/.

I’m not a fan of LinkedIn comments as a forum for constructive conversation. So why did I respond? Because the only way to combat entrenched ideas is by being persistent. With that in mind, here’s the passage from the introduction to the fourth edition of MSCD that I mentioned in my reply to Ian:

Claiming That Traditional Language Has Been “Tested”

A more nuanced argument against changing traditional contract language is that doing so would be risky—traditional contract language has been litigated, or “tested,” so it has an established, or “settled,” meaning.

Here’s how one commentator expressed it: “[C]areful writing can even be counterproductive if the result is to re-draft language that has been previously interpreted by a court as having a particular meaning. Ironically, in such a case, changing the words—even for the better—can only increase uncertainty.” Robert C. Illig, A Business Lawyer’s Bibliography: Books Every Dealmaker Should Read, Journal of Legal Education 585, 625 (May 2012).

This argument suffers from three weaknesses, each fatal. First, because courts have scrutinized some traditional contract terminology but not the full range of contract usages, the notion of “tested” contract language applies only narrowly.

Second, the notion of “tested” contract language suggests that all courts ascribe the same set meaning to individual usages. That’s not so. How courts interpret usages depends on the circumstances of each case and the semantic acuity of the judge, and can vary over time and among jurisdictions.

And third, if parties to a contract had to ask a court to determine the meaning of a particular provision, that’s because the contract failed to state clearly the intent of the parties. Why rely on wording that created confusion? Instead, express meaning clearly, so you needn’t gamble on a court attributing the desired meaning to a contract. Courts have to clean up whatever messes they’re presented with, but this manual is free to recommend ways to avoid confusion. The Delaware Chancery Court has acknowledged as much, noting “the difference between the roles served by courts and judges, on the one hand, and commentators like Adams, on the other.” GRT, Inc. v. Marathon GTF Technology, Ltd., No. CIV.A. 5571-CS, 2011 WL 2682898, at *14 n.79 (Del. Ch. 11 July 2011).

So although some lawyers will continue to claim that “tested” contract language is safer than expressing meaning clearly, it’s a lazy platitude.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.